STEMMING THE TIDE OF FAKE NEWS: A GLOBAL CASE STUDY OF DECISIONS TO REGULATE
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
STEMMING THE TIDE OF FAKE NEWS:
A GLOBAL CASE STUDY OF DECISIONS TO
REGULATE
By Amy Kristin Sanders,* Rachael L. Jones,** and Xiran
Liu***
“[I]t is so difficult to draw a clear line of separation between the abuse
and the wholesome use . . . of the press, that as yet we have found it better
to trust the public judgment, rather than the magistrate, with the
discrimination between truth & falsehood. And hitherto the public judgment
has performed that office with wonderful correctness.”
¾Thomas Jefferson1
I. INTRODUCTION: THE RISE OF FAKE NEWS IN THE ERA OF SOCIAL MEDIA
“Rogue Amazon Drone Attempts To Deliver BOMB To White House.”2
“Pink water comes from taps in Canada town.”3 “Clinton Campaign
Chairman . . . Involved in Satanic [Rituals].”4 Certainly, headlines like these
can’t be true. Can they?
* J.D./Ph.D., Associate Professor at the Moody College of Journalism at the University of
Texas.
** J.D., Research Fellow for the Brechner Center for Freedom of Information at the
University of Florida.
*** Graduate Student at the London School of Economics.
1 Letter from Thomas Jefferson to Marc Auguste Pictet (Feb. 5, 1803), in 39 THE PAPERS OF
THOMAS JEFFERSON, 13 November 1802–3 March 1803, at 456-457 (Barbara B. Oberg ed.,
Princeton University Press 2012), http://founders.archives.gov/documents/Jefferson/01-39-02-
0391.
2 Tom Florer, Rogue Amazon Drone Attempts to Deliver BOMB to White House, DAILY
CHRONICLE (Oct. 25, 2017), http://www.thedailychronicle.co.uk/2017/10/25/rogur-amazon-drone-
attempts-deliver-bomb-white-house.
3 “Pink Water Comes from Taps in Canada Town,” SKYNEWS (Mar. 8, 2017),
https://news.sky.com/video/pink-water-comes-from-taps-in-canada-town-10794539.
4 Dan Evon, Fact Check: Was Clinton Campaign Chairman John Podesta Involved in Satanic
'Spirit Cooking'?, SNOPES (Nov. 4, 2016), https://www.snopes.com/john-podesta-spirit-cooking.
203204 J. I N T ’ L M E D I A & E N T E R T A I N ME N T L A W VOL. 8, NO. 2
In the era of “Fake News,” readers often do not know what to believe.
Around the globe, fake news has had real-world impact; for example, in early
2017, protestors gathered outside the White House in Washington, D.C.
demanding the American government investigate an unfounded Internet
rumor.5 The same rumor, which claimed the existence of a child-sex ring in
a local pizza parlor and connected high-level Democratic political figures,
including Hillary Clinton, led an armed North Carolina man to storm the
Comet Ping Pong Pizzeria in December 2016, in an insane quest for evidence
of child sex abuse.6 Now known as “Pizzagate,” the rumor stemmed from
articles boasting fake information about the Clinton campaign and the D.C.
pizza joint.7 When alt-right political pundits, such as Infowars founder Alex
Jones, caught wind of the story, it went viral and led to the incident that
occurred during the December 2016 and the 2017 protests. Despite an
apology from Jones for his role in spreading the now-proven-false rumor,
protestors still gathered in the American capital insisting that the story was
legitimate.8
Given the interconnectedness of our Global Village,9 fake news has the
ability to spread quickly and have lasting impact. During recent elections in
France, fake news caught the attention of voters and candidates alike, with
President Emmanuel Macron vowing to take action.10 Macron isn’t alone;
noting the potential impact of fake news, numerous world leaders have
voiced their concerns, including the UK’s Theresa May, Germany’s Angela
Merkel, and Israel’s Benjamin Netanyahu.11 United States President Donald
Trump repeatedly lashes out at what he has dubbed the “fake news media.”12
5 Michael E. Miller, Protesters Outside White House Demand ‘Pizzagate’ Investigation,
WASH. POST (Mar. 25, 2017),
https://www.washingtonpost.com/news/local/wp/2012/03/25/protesters-outside-white-house-
demand-pizzagate-investigation.
6 Faiz Siddiqui & Susan Svlruga, N.C. Man Told Police He Went to D.C. Pizzeria with Gun
to Investigate Conspiracy Theory, WASH. POST (Dec. 5, 2016),
https://www.washingtonpost.com/news/local/wp/2016/12/04/d-c-police-respond-to-report-of-a-
man-with-a-gun-at-comet-ping-pong-restaurant.
7 Cecilia Kang, Fake News Onslaught Targets Pizzeria as Nest of Child-Trafficking, N.Y.
TIMES (Nov. 21, 2016), https://www.nytimes.com/2016/11/21/technology/fact-check-this-pizzeria-
is-not-a-child-trafficking-site.html.
8 Miller, supra note 5.
9 MARSHALL MCLUHAN, UNDERSTANDING MEDIA: THE EXTENSIONS OF MAN (Gingko Press
dig. ed. 2013).
10 Scott Neuman, France’s Macron Says He Wants Law to Combat Fake News, NPR (Jan. 4,
2018), https://www.npr.org/sections/thetwo-way/2018/01/04/575580790/frances-macron-says-he-
wants-law-to-combat-fake-news.
11 Joe Concha, Netanyahu Attacks US Media as ‘Fake News’,HILL (May 8, 2017),
http://thehill.com/homenews/media/332340-netanyahu-attacks-us-media-as-fake-news.
12 Rebecca Morin, Trump Accuses ‘Fake News’ Media of Making Up Sources, POLITICO (May
28, 2017), https://www.politico.com/story/2017/05/28/trump-fake-news-media-238894.S T E MMI N G T H E T I D E O F F A K E N E WS 205
But what is the answer to combatting the spread of misinformation? And who
should decide whether something is truthful?
To begin, it is important to understand the origins of fake news itself,
including its motivations. Many commenters have suggested that social
media has led to the rise of the Fake News movement. 13 However, such a
view ignores much of fake news’ history. A 2017 article in Politico Magazine
traces the roots of fake news back to Gutenberg’s invention of the printing
press, relaying fictitious stories of Jews drinking the blood of Christian
children in the late 1400s.14 In fact, history has given a name to the various
types of fake news for centuries.15 As newspapers grew in popularity, so did
the circulation and platform for fake news. Examples of similar fake news
movements were seen in Italy in 152216 and inseventeenth-century France.17
Still, it has continually been the audience’s job to decipher truth from
hyperbole. As Robert Darnton noted: “Although news of this sort could whip
up public opinion, sophisticates knew better than to take it literally. Most of
it was fake, sometimes openly so. A footnote to a scandalous item in Le
Gazetier cuirasse read: ‘Half of this article is true.’ It was up to the reader to
decide which half.”18
In his article for The Economist, Tom Standage relays the story of how
the New York Sun’s circulation more than doubled after it printed the story of
a renowned British astronomer having witnessed “giant man-bats.”19 The
deception, concocted by the editor, ensured the increase in readership and as
a result, revenue as well. To this day, economic motivation is one of the chief
drivers of the creation of fake news. The BBC recently published the story of
a Macedonian teen who earned 1800 Euros off fake news content the first
13 Claire Wardle & Hossein Derakhshan, How Did the News Go ‘Fake’? When the Media Went
Social, GUARDIAN (Nov. 10, 2017),
https://www.theguardian.com/commentisfree/2017/nov/10/fake-news-social-media-current-
affairs-approval; Benedict Carey, How Fiction Becomes Fact on Social Media, N.Y. TIMES (Oct.
20, 2017), https://www.nytimes.com/2017/10/20/health/social-media-fake-news.html.
14 Jacob Soll, The Long and Brutal History of Fake News, POLITICO (Dec. 18, 2016),
https://www.politico.com/magazine/story/2016/12/fake-news-history-long-violent-214535.
15 Robert Darnton, The True History of Fake News, N.Y. REVIEW OF BOOKS (Feb. 13, 2017),
http://www.nybooks.com/daily/2017/02/13/the-true-history-of-fake-news.
16 In 1522, the Italian “pasquinde” emerged after Pietro Aretino attempted to sway the outcome
of a pontifical election by posting scurrilous writings about candidates in Rome’s Piazza Navona.
Id.
17 During the seventeenth century, the French “canard” ruled the roost by poking fun at Marie
Antoinette and others through political propaganda. Id.
18 Id.
19 Tom Standage, The True History of Fake News, ECONOMIST (June/July 2017),
https://www.1843magazine.com/technology/rewind/the-true-history-of-fake-news.206 J. I N T ’ L M E D I A & E N T E R T A I N ME N T L A W VOL. 8, NO. 2
month he started producing it.20 The young entrepreneur shared tales of
friends making thousands per day creating and sharing fake news.21
A second primary motivation behind the creation and sharing of fake
news can be found in the actions of Pietro Aretino, whose goal was to peddle
influence.22 Like the InfoWars story on “Pizzagate,” Arentino’s pasquinades
were designed to affect the outcome of an election. It is this motivation—
more than a publisher’s desire for economic prosperity – that is driving the
world’s leaders and influential players to propose the regulation of fake news.
This desire to upend political and social stability around the world surely calls
into question the role of fake news in a democratic society.
Thus, there has never truly been a shortage of false information. Whether
it is to impact politics—insixteenth-century Italy or twenty-first-century
America—or to make money—by Yellow Journalists Hearst and Pulitzer in
the 1890s23 or 2017’s Macedonian teenagers,24 fake news has been a constant
companion to truthful information in our society. But history—along with
Thomas Jefferson’s writings—suggests that the public has readily discerned
the truth despite an onslaught of falsities. What has changed, then, in our
modern era that inhibits our ability to distinguish between fact and fiction?
And, furthermore, what can be done about it?
This Article examines recent legal and regulatory actions aimed at
stemming the tide of fake news around the world. It argues that government
regulation of fake news runs contrary to the principles of freedom of
expression enshrined within democratic values. As an alternative, it
encourages regulation from within the industry in combination with a greater
emphasis on media literacy around the world.
II. GLOBAL ATTEMPTS TO REGULATE FAKE NEWS
As the tide of anger-inspiring websites continues to churn out false
reports en masse, sending shockwaves through the Internet, political leaders
around the globe are debating the development of policies and practices
aimed at curbing the spread of sensationalist and often made-up “fake news”
stories that are influencing their citizens.
20 Emma Jane Kirby, The City Getting Rich from Fake News, BBC (Dec. 5, 2016),
http://www.bbc.com/news/magazine-38168281.
21 Id.
22 Id.
23 Yellow Journalism, PBS, http://www.pbs.org/crucible/frames/_journalism.html.
24 Samantha Subramanian, Inside the Macedonian Fake-News Complex, WIRED (Feb. 15,
2017), https://www.wired.com/2017/02/veles-macedonia-fake-news.S T E MMI N G T H E T I D E O F F A K E N E WS 207
Countries have adopted various approaches in the battle against what
some have called the “fake news epidemic,”25 all of which tend to fall into
three main categories. Under the first approach, a number of countries are
calling for, or funding, private sector initiatives to more carefully scrutinize
content on the Internet. Similarly, other nations have developed initiatives
that authorize government agencies to scrutinize and report fake news
content. Finally, some countries have opted to regulate fake news through
legislative means by enacting or enforcing laws that impose fines or jail time
on parties who are responsible for the creation or dissemination of fake news.
Although the focus of this Article centers on the legislative means of
regulating fake news, often the most extreme and controversial approach, the
other two approaches must also be addressed. Not surprisingly, all three
regulatory schemes have been met with resistance from law professors, civil
society, and others’ concerns about the impact of such a crackdown on
freedom of expression.26
A. Private Sector Efforts
The most prominent private sector attempts at regulation have come
from social media platforms—i.e., Ground Zero for the spread of fake news
today. U.S. companies Facebook and Twitter have garnered the most
headlines for their attempts to regulate fake news content on their sites.27
With more than two billion monthly active users,28 Facebook, along with
many other social media platforms, has changed how the public consumes
information—including fake news and other content.29 Through a
combination of careless news consumption and the remarkable speed of post
sharing, social media’s low cost and wide reach provides an unbeatable
platform for the spread of fake news. As a result, Americans witnessed the
manipulation of public opinion through the dissemination of fake news via
25 Hillary Clinton Warns of ‘Fake News Epidemic’, BBC (Dec. 9, 2016),
http://www.bbc.com/news/world-us-canada-38258967.
26 French Opposition, Twitter Users Slam Macron’s Anti-Fake-News Plans, REUTERS (Jan. 5,
2018), https://www.reuters.com/article/us-france-macron-fakenews/french-opposition-twitter-
users-slam-macrons-anti-fake-news-plans-idUSKBN1EU161.
27 Alex Hern, Twitter May Introduce Feature to Let Users Flag ‘Fake News,’ GUARDIAN (June
30, 2017), https://www.theguardian.com/technology/2017/jun/30/twitter-could-introduce-feature-
to-let-users-flag-fake-news.
28 As of the third quarter of 2017.
29 Carol D. Leonnig, Tom Hamburger & Rosalind S. Helderman, Russian Firm Tied to Pro-
Kremlin Propaganda Advertised on Facebook During Election, WASH. POST (Sept. 6, 2017),
https://www.washingtonpost.com/politics/facebook-says-it-sold-political-ads-to-russian-company-
during-2016-election/2017/09/06/32f01fd2-931e-11e7-89fa-bb822a46da5b_story.html.208 J. I N T ’ L M E D I A & E N T E R T A I N ME N T L A W VOL. 8, NO. 2
social media during the 2016 U.S. Presidential election.30 One example was
the widespread circulation of an article from the fake website
denverguardian.com with the headline, “FBI agent suspected in Hillary email
leaks found dead in apparent murder-suicide.”31 Facebook, one of the world’s
largest companies by market capitalization,32 eventually joined the fight
against fake news after its platform drew significant scrutiny even though
founder Mark Zuckerberg initially rebuffed claims that his company must
take responsibility for the site’s content.33
Since the United States election, Facebook has experimented with
multiple approaches to combat fake news, with most efforts ultimately
having little impact. Zuckerberg’s company took action shortly after
allegations arose linking the spread of fake news on Facebook with the
outcome of the presidential election.34 Kicking off a series of initiatives,
Facebook targeted 30,000 fake accounts in the lead-up to the French election
in an effort to debunk false claims. It ran full-page ads in French newspapers,
offering guidance to French voters on spotting fake news the weeks
preceding the election.35
Other efforts by Facebook were greeted with more critical responses,
including efforts aimed at helping users identify fake content on its own
platform. Facebook experimented with various methods of promoting
30 For example, one of the most popular fakes news posts that circulated online was an article
from the fake website denverguardian.com, which presented the headline, “FBI agent suspected in
Hillary email leaks found dead in apparent murder-suicide.” Election coverage also saw the
resurgence of a 2014 fake headline from the “conservative, libertarian, free market and pro-family”
blog WesternJournalism.com that claimed Florida democrats voted to enact Sharia law,
http://www.politifact.com/florida/statements/2014/may/08/blog-posting/florida-democrats-just-
voted-impose-sharia-law-wom. More examples of fake news stories from the 2016 can be found in
a discussion on PolitiFact at http://www.politifact.com/truth-o-meter/article/2016/dec/13/2016-lie-
year-fake-news. See also Hunt Allcott & Matthew Gentzkow, Social Media & Fake News in the
2016 Election, 31 J. ECON. PERSPECTIVES 211-36 (2017),
https://www.aeaweb.org/full_issue.php?doi=10.1257/jep.31.2.
31 Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election, 31
J. ECON. PERSPECTIVES 211-36 (2017),
https://www.aeaweb.org/full_issue.php?doi=10.1257/jep.31.2.
32 Sean Illing, Why “Fake News” is an Antitrust Problem, VOX (Sept. 23, 2017),
https://www.vox.com/technology/2017/9/22/16330008/facebook-google-amazon-monopoly-
antitrust-regulation.
33 Kurt Wagner, Mark Zuckerberg Admits He Should Have Taken Facebook Fake News and
The Election More Seriously: ‘Calling That Crazy Was Dismissive and I Regret It,’ RECODE (Sept.
27, 2017), https://www.recode.net/2017/9/27/16376502/mark-zuckerberg-facebook-donald-trump-
fake-news.
34 Mike Isaac, Facebook Considering Ways to Combat Fake News, Mark Zuckerberg Says,
N.Y. TIMES (Nov. 19, 2016), https://www.nytimes.com/2016/11/20/business/medim/facebook-
considering-ways-to-combat-fake-news-mark-zuckerberg-says.html.
35 Seth Fiegerman, Facebook's global fight against fake news, CNN (May 9, 2017, 10:35 AM),
http://money.cnn.com/2017/05/09/technology/facebook-fake-news/index.html.S T E MMI N G T H E T I D E O F F A K E N E WS 209
content created by fact-checking organizations and groups who followed the
principles outlined by the International Fact Checking Network, including
giving these stories special placement in its News Feed.36 Another initiative
was aimed at optimizing algorithms to promote comments containing the
word “fake” to prominent positions under the Shared News feature.37 Other
changes included providing publisher information to the users,38 and
employing “trust indicators,” which were used by more than 75 news
organizations to display an icon showing how a story was reported and the
credentials of the reporters.39
But the “Disputed” flag was perhaps the most controversial of
Facebook’s changes. Designed to flag certain stories identified as fake and
provide users with links to articles giving additional facts or context to
explain why the original article was questionable, the “Disputed” flag drew
significant criticism.40 In December 2017, Facebook announced it was
ending the program.41 Rather than encouraging media literacy and critical
consumption, data suggests the program suffered from a number of
shortcomings. The process of tagging articles was time-consuming, resulting
in the continued sharing of many fictitious articles before they were properly
tagged.42 In some instances, properly tagged fake news articles went viral as
a reaction to the perception that Facebook was attempting to silence certain
groups or views.43 Concerns also arose about Facebook’s potential bias, with
some claiming the social media platform was targeting stories that did not
agree with certain ideologies. In one instance, Facebook was accused of
36 Craig Silverman, Facebook Is Turning To Fact-Checkers To Fight Fake News, BUZZFEED
(Dec. 15, 2016, 9:59 AM), https://www.buzzfeed.com/craigsilverman/facebook-and-fact-checkers-
fight-fake-news.
37 Jane Wakefield, Facebook's fake news experiment backfires, BBC (Nov. 7, 2017),
http://www.bbc.com/news/technology-41900877.
38 Tom Huddleston Jr., Facebook's Latest Attempt at Fighting Fake News Is to Provide
Publisher Info, FORTUNE (Oct. 5, 2017), http://fortune.com/2017/10/05/facebook-test-more-info-
button-fake-news.
39 Mike Snider, Facebook, Google, Twitter and media outlets fight fake news with "trust
indicators," USA TODAY (Nov. 16, 2017),
https://www.usatoday.com/story/tech/news/2017/11/16/facebook-google-twitter-and-media-
outlets-fight-fake-news-trust-indicators/869200001.
40 Id.
41 Thuy Ong, Facebook Found a Better Way to Fight Fake News, VERGE (Dec. 21, 2017),
https://www.theverge.com/2017/12/21/16804912/facebook-disputed-flags-misinformation-
newsfeed-fake-news.
42 Sam Levin, Facebook Promised to Tackle Fake News. But the Evidence Shows It’s Not
Working, GUARDIAN (May 16, 2017),
https://www.theguardian.com/technology/2017/may/16/facebook-fake-news-tools-not-working.
43 Id.210 J. I N T ’ L M E D I A & E N T E R T A I N ME N T L A W VOL. 8, NO. 2
ignoring fake news that had an anti-abortion slant.44 Further, the “Disputed”
flags were appended to individual articles, which failed to prevent users from
spreading other versions of the same fake news article.45
Even after a “Disputed” flag was placed on a story, there was no
guarantee that readers would take the time to look for truthful information. A
2016 study conducted by Yale University showed that news tagging on social
media does not correct misinformation conveyed by fake news headlines or
the temper impact that such misinformation has on readers.46 Despite some
of these best efforts, the task of reducing fake news through social media has
proved to be a difficult—arguably unwinnable—task. As Facebook itself
concluded, there is no “silver bullet” approach to fake news.47
In response to concerns about fake news, Twitter—along with Facebook
and Google—announced in November 2017 it would employ “trust
indicators” to assist users in evaluating content on its site.48 However, it
provided no additional information beyond the generic agreement to
participate. Even the Trust Project’s own website failed to mention Twitter’s
subsequent involvement, noting that 10 sites – none of which include major
social media platforms—have displayed and tested the “Trust indicators.”49
Private sector organizations and individuals, like the International Fact
Checking Network, have also stepped up to voluntarily participate in the
battle against fake news. In Ukraine, a group of lecturers, graduates and
students from Kyiv’s Mohyla Journalism School operate the highly respected
Stopfake.org, a fact-checking website focused on denouncing dubious claims
made by Russian-backed media organizations.50 These include false claims
44 Rossalyn Warren, Facebook Is Ignoring Anti-Abortion Fake News, N.Y. TIMES (Nov. 10,
2017), https://www.nytimes.com/2017/11/10/opinion/facebook-fake-news-abortion.html.
45 Sam Levin, Facebook Promised to Tackle Fake News. But the Evidence Shows It’s Not
Working, GUARDIAN (May 16, 2017),
https://www.theguardian.com/technology/2017/may/16/facebook-fake-news-tools-not-working.
46 Gordon Pennycook and David G. Rand, The Implied Truth Effect: Attaching Warnings to A
Subset of Fake News Stories Increases Perceived Accuracy of Stories Without Warnings, Yale
University Research Paper, 2016; see also Jason Schwartz, Tagging fake news on Facebook doesn’t
work, study says, POLITICO (Sept. 12, 2017), https://www.politico.eu/article/tagging-fake-news-
on-facebook-doesnt-work-study-says.
47 Is Facebook Losing the Battle Against Fake News? Facebook Has Hired Fact Checkers, But
Critics Say this is Not Enough, HUFFINGTON POST, (Oct. 31, 2017),
http://www.huffingtonpost.co.za/2017/10/31/is-facebook-losing-the-battle-against-fake-
news_a_23261493.
48 Seth Fiegerman, Facebook, Google, Twitter to Fight Fake News with ‘Trust Indicators’,
CNN (Nov. 16, 2017), http://money.cnn.com/2017/11/16/technology/tech-trust-
indicators/index.html.
49 The Trust Project, https://thetrustproject.org (last visited May 25, 2020).
50 Scott Roxborough, How Europe is Fighting Back Against Fake News, HOLLYWOOD
REPORTER (Aug. 21, 2017), http://www.hollywoodreporter.com/news/how-europe-is-fighting-
back-fake-news-1030837.S T E MMI N G T H E T I D E O F F A K E N E WS 211
that the Ukrainian government is run by neo-Nazis, for example. Elsewhere,
websites such as Snopes.com—perhaps the web’s premier fact-checking
site—have continued to debunk rumors and other misinformation circulating
on the Internet.51 Snopes certainly is not alone; The Tampa Bay Times
operates Politifact, and the Annenberg Public Policy Center at the University
of Pennsylvania runs FactCheck.org. Launched in September 2015, the
Poynter Institute’s International Fact Checking Network takes the form of a
coalition, enlisting the help of fact checkers worldwide.52 Ultimately, though,
it seems these piece-meal, private efforts are no match for the large-scale fake
news industry well-versed in taking advantage of the speed and reach of
social media.
B. Non-Legislative Efforts by Governments
In addition to private-sector efforts to stem the tide of fake news, many
European countries are taking more official actions. Often aimed at concerns
about the political impact of fake news, these efforts have taken two primary
forms: legislative and non-legislative mandates. Non-legislative mandates,
the topic of this section, include government initiatives that use the coercive
powers of the state—absent the legislative deliberative process—to police the
creation and spread of fake news.
Several governments have created special units within their auspices that
are designed to investigate fake news. Often, these agencies are intended to
address the undue influence posed by fictitious content in the months and
weeks leading up to election cycles.53 One of the most influential efforts
started in the Czech Republic, where officials expressed concerned about
potential interference with the 2017 parliamentary and presidential
elections.54 There, the “alternative news business” has thrived, with populist-
inspired sites working to stir general discontent among voters.55 “It seems to
me that the overall effort is more to foment mistrust in institutions, in
traditional parties, in sort of traditional institutional sources of authority. It
doesn’t seem to me that there would be a unified or orchestrated effort
51 Michelle Dean, Snopes and the Search for Facts in a Post-Fact World, WIRED (Sept. 20,
2017), https://www.wired.com/story/snopes-and-the-search-for-facts-in-a-post-fact-world.
52 Fact-Checking, POYNTER INSTITUTE, https://www.poynter.org/channels/fact-checking.
53 Anisah Shukry, Malaysia Gears Up for Election as Najib Targets ‘Fake News,’
BLOOMBERG (Jan. 5, 2018), https://www.bloomberg.com/news/articles/2018-01-05/malaysia-
gears-up-for-election-as-najib-targets-fake-news.
54 Rob Cameron, Fake news: Czechs Try to Tackle Spread of False Stories, BBC (Feb. 2,
2017), http://www.bbc.com/news/world-europe-38808501.
55 Emily Schultheis, The Czech Republic’s Fake News Problem, ATLANTIC (Oct. 21, 2017),
https://www.theatlantic.com/international/archive/2017/10/fake-news-in-the-czech-
republic/543591.212 J. I N T ’ L M E D I A & E N T E R T A I N ME N T L A W VOL. 8, NO. 2
[among the sites] to support this or that political party or movement.”56
Nonetheless, political leaders openly expressed concern.57 In response to
concerns raised in a national security audit, the Interior Minister established
the Centrum Proti Terorismu a Hybridnim Hrozbam (Centre Against
Terrorism and Hybrid Threats), which began operations in early 2017.58
Interestingly, the government asserts it was not created as a law enforcement
agency or intelligence service.59 Instead, its stated mission is to “inform about
serious cases of disinformation and . . . provide expert opinions for the public
and government institutions.”60
Finland announced plans in early 2017 to build a similar center, in
partnership with nine EU countries,61 including the United States and
NATO.62 The European Centre of Excellence for Countering Hybrid Threats,
was designed to unify efforts to fight disinformation and fake news by
consolidating expertise and resources.63 Like the Czech Republic, many of
the countries involved “have been particularly concerned over what they say
are Russia’s aggressive disinformation campaigns and systematic spreading
of false news on their countries.”64 Envisioned more as a strategic hub to
centralize efforts to combat fake news and cyber hacks, the center’s mission
does not formally include law enforcement or surveillance mandates.65
56 Id.
57 James Shotter, Czechs Fear Russian Fake News in Presidential Election, FINANCIAL TIMES
(Jan. 8, 2018), https://www.ft.com/content/c2b36cf0-e715-11e7-8b99-0191e45377ec.
58 CENTRE AGAINST TERRORISM & HYBRID THREATS,
http://www.mvcr.cz/cthh/clanek/centre-against-terrorism-and-hybrid-threats.aspx (last visited May
15, 2020).
59 “Given the competencies of the Ministry of the Interior, the Centre will monitor threats
directly related to internal security, which implies a broad array of threats and potential incidents
relative to terrorism, soft target attacks, security aspects of migration, extremism, public gatherings,
violation of public order and different crimes, but also disinformation campaigns related to internal
security. Based on its monitoring work, the Centre will evaluate detected challenges and come up
with proposals for substantive and legislative solutions that it will also implement where possible.
It will also disseminate information and spread awareness about the given issues among the general
and professional public.” Id.
60 Id.
61 The countries include Britain, Finland, France, Germany, Latvia, Lithuania, Poland and
Sweden, along with the United States. See Jari Tanner, New Center to Combat Disinformation to be
Built in Finland, ASSOCIATED PRESS (Apr. 11, 2017),
https://www.apnews.com/d5b1763ae5ad463ba8bc4fff5fa23816.
62 Id.
63 Hilary Lamb, ‘Hybrid Threat’ Centre to be Built in Finland to Counter Fake News,
ENGINEERING & TECH. (Apr. 12, 2017), https://eandt.theiet.org/content/articles/2017/04/hybrid-
threat-centre-to-be-built-in-finland-to-counter-fake-news.
64 See Tanner, supra note 61.
65 The functions of Hybrid CoE include the following: “to encourage strategic-level dialogue
and consulting between and among Participants, the EU and NATO; to conduct research and
analysis into hybrid threats and methods to counter such threats; to develop doctrine, conduct
training and arrange exercises aimed at enhancing the Participants’ individual capabilities, as wellS T E MMI N G T H E T I D E O F F A K E N E WS 213
Although the center officially launched operations in September 2017 with
three additional countries participating, few accounts of its efforts or
successes have been publicized.
C. Legislative Efforts by Governments
The third—and arguably most troubling—approach to the regulation of
fake news involves legislative efforts by governments around the world.
Throughout Europe and Asia, governments have enacted or begun to enforce
laws penalizing—and often criminalizing—the creation and distribution of
fake news. The legislative proposals, some of which have recently taken
effect as law, have drawn harsh criticism from attorneys, legal scholars and
other civil society groups because of the chilling effect they are likely to have
on freedom of expression.
Germany’s enactment of a law aimed at penalizing social media
platforms who fail to stop the spread of fake news has garnered significant
attention worldwide. The law, titled Netzwerkdurchsetzungsgesetz and
known as NetzDG, was passed in 2017, and Germany began enforcing it
January 1, 2018.66 The law authorizes fines of up to 50 million Euros against
social media platforms who fail to remove “obviously illegal” content,
including hate speech and fake news within 24 hours of being notified.67
Content that is not obviously illegal must be removed within 7 days of
notification. Additionally, individuals responsible for removing content
could be held liable for up to five million Euros in penalties under the new
regime.68 Although the law was designed to target Facebook, Twitter and
YouTube, it could also impact Reddit, Tumblr, Vimeo, Flickr and Russian
platform VK, all of which are popular in Germany.69 Companies will be
as interoperability between and among Participants, the EU and NATO for countering hybrid
threats; to engage with and invite dialogue with governmental and non-governmental experts from
a wide range of professional sectors and disciplines; and to involve, or cooperate with, communities
of interest (COI) focusing on specific activities that may constitute hybrid threats, on methodologies
for understanding these activities, and on ways to adjust organizations to better address such threats
effectively.” Memorandum of Understanding: On the European Centre of Excellence for
Countering Hybrid Threats, HYBRID COE, 2 (Dec. 6, 2016), https://www.hybridcoe.fi/wp-
content/uploads/2017/08/Hybrid-CoE-final-Mou-110417-1.pdf. (last visited May 26, 2020)
66 Germany Starts Enforcing Hate Speech Law, BBC (Jan. 1, 2018),
http://www.bbc.com/news/technology-42510868.
67 Id.
68 Germany Approves Plans to Fine Social Media Firms Up to €50M, GUARDIAN (June 30,
2017), https://www.theguardian.com/media/2017/jun/30/germany-approves-plans-to-fine-social-
media-firms-up-to-50m.
69 Id.214 J. I N T ’ L M E D I A & E N T E R T A I N ME N T L A W VOL. 8, NO. 2
required to publish biannual reports outlining reported complaints and their
resolution.70
Although Germany’s new law is by far the “boldest step” taken by a
Western democracy, other countries, such as the Philippines, Ireland and
France, have undertaken similar legislative moves. In June 2017, Filipino
senator Joel Villanueva filed a bill aimed at curtailing fake news.71 The bill
titled “Penalizing Malicious Distribution of False News and Other Related
Violations” cites the German law in support of the effort in the Philippines.
The act defines fake news as content that would intend “to cause panic,
division, chaos, violence, and hate, or those which exhibit a propaganda to
blacken or discredit one's reputation.”72 The bill established penalties of 5
million Pesos (approximately $100,000USD) and up to 5 years in prison for
private citizens while fines and jail sentences for public officials found guilty
are increased two-fold.73 Media platforms would face up to 20 million Peso
fines or 10 years in prison for failing to remove fake news.74 In a surprising
announcement, Philippine President Rodrigo Duterte condemned the
proposed law, saying the measure amounted to censorship.75 Duerte objected
to fake news laws citing that they violate the freedom of expression.
French President Emmanuel Macron became the latest Western leader
to take on fake news when he called for additional regulation. French
politicians, like those in many European countries, have expressed concern
about political manipulation through fake news or advertisement on social
media. During Macron’s new year speech to journalists, he promised a new
law to impose tougher rules on social media companies and place limits on
political ads in an effort to limit undue political influence.76 Short on
specifics, Macron emphasized the need for transparency in sources of
70 Id.
71 Eimor P. Santos, Bill Filed vs. Fake News: Up to P10M Fine, 10-Year Jail Time for Erring
Public Officials, CNN PHILIPPINES (June 22, 2017, 7:30 PM),
http://cnnphilippines.com/news/2017/06/22/senate-bill-fake-news-fines-government-
officials.html.
72 Senate of the Philippines,
https://www.senate.gov.ph/lis/bill_res.aspx?congress=17&q=SBN-1492 (last visited May 15,
2020).
73 Santos, supra note 71.
74 Stanley Cabigas, Philippine Senator Moves to Criminalize ‘Fake News’ — Could this Lead
to Censorship?, GLOBAL VOICES (July 7, 2017, 3:57 PM),
https://advox.globalvoices.org/2017/07/07/philippine-senator-moves-to-criminalize-fake-news-
could-this-lead-to-censorship.
75 Pia Gutierrez, Duterte Says Proposed Law vs. ‘Fake News” Won’t Pass, ABS-CNB NEWS
(Oct. 4, 2017), http://news.abs-cbn.com/news/10/04/17/duterte-says-proposed-law-vs-fake-news-
wont-pass.
76 Yasmeen Serhan, Macron’s War on ‘Fake News’, ATLANTIC (Jan. 6, 2018),
https://www.theatlantic.com/international/archive/2018/01/macrons-war-on-fake-news/549788.S T E MMI N G T H E T I D E O F F A K E N E WS 215
apparent news content.77 He also expressed support for placing limits on the
amount spent on political ads during elections.78 Macron emphasized the
need to protect democracy:
“Thousands of propaganda accounts on social networks are spreading all
over the world, in all languages, lies invented to tarnish political officials,
personalities, public figures, journalists. If we want to protect liberal
democracies, we must have strong legislation.”79 He went further in
addressing the impetus for his proposed change, citing “destabilization
attempts by television channels controlled or influenced by foreign states.”80
Initially, however, it seemed his proposal would be more limited in scope
than Germany’s sweeping law. As a candidate, Macron who was affected by
fake news during the election cycle, so it should not be surprising that he
emphasizes the time period leading up to voting.81 One of the boldest
measures he proposed included “an emergency legal action,” which would
allow authorities to remove fake news content or even block a website from
publishing during election seasons. Macron’s plan quickly received critical
responses, including from opposition leader Marine Le Pen who questioned:
“Who will decide if a piece of news is fake? Judges? The government?”82
Just a month earlier, the Irish Republican Party, known as Fianna Fáil,
introduced a groundbreaking bill to regulate fake news in Ireland’s
parliament, known as the Dáil.83 It introduced the bill despite earlier warnings
from the country’s information minister that there was no legal way to restrict
fake news.84 The bill targets individuals who use bots to spread false political
information via social media, declaring the act punishable by five years in
prison or fines of up to 10,000EUR.85 The “Online Advertising and Social
77 Emmanuel Macron: French President Announces ‘Fake New’' Law, BBC (Jan. 3,
2018), http://www.bbc.com/news/world-europe-42560688.
78 Melanie Ehrenkranz, France's President Macron Wants to Block Websites During Elections
to Fight ‘Fake News’, GIZMODO (Jan. 3, 2018, 11:13 AM), https://gizmodo.com/frances-president-
macron-wants-to-block-websites-during-1821770692.
79 Id.
80 Id.
81 Sebastian Shukla & Melissa Bell, France to Crack Down on ‘Fake News’, CNN (Jan. 3,
2018), http://edition.cnn.com/2018/01/03/europe/macron-france-fake-news-law/index.html.
82 Charles Bremmer, Macron’s War on Fake News From Russia Angers Le Pen, TIMES (Jan.
5, 2018), https://www.thetimes.co.uk/article/macrons-war-on-fake-news-from-russia-angers-le-
pen-0s8tg0kqv.
83 Irish Parliament to Debate Bill Proposing Jail Time for Spreading Fake News, RUSSIA
TODAY (Dec. 4, 2017), https://www.rt.com/news/411910-irish-politician-fake-news-law.
84 Id.
85 Daniel Funke, In Ireland, Lawmakers Are Trying to Criminalize the Use of Bots To Spread
Political Misinformation, POYNTER INST. (Dec. 8, 2017), https://www.poynter.org/fact-
checking/2017/in-ireland-lawmakers-are-trying-to-criminalize-the-use-of-bots-to-spread-political-
misinformation.216 J. I N T ’ L M E D I A & E N T E R T A I N ME N T L A W VOL. 8, NO. 2
Media (Transparency) Bill 2017,” outlaws the use of bots to create 25 or more
online presences in an attempt to sway political debate.86 In addition, to
increase transparency, the bill mandates the identification of publishers and
sponsors of political advertising online.87
The bill was proposed based on concerns of the use of bots to spread
fake news—similar to incidents surrounding Brexit and the 2016 U.S.
presidential election—could impact the Irish political climate.88 Although
Fianna Fáil and James Lawless, who authored the bill, acknowledge that Irish
politics have not been heavily affected by fake news, he cautioned that
Ireland should be aware of the “new form of hybrid information warfare
which is underway on social media.”89
Ireland is not the only country whose battle against fake news has been
justified on the basis of transparency in political advertising. Fianna Fáil’s
proposal in Ireland largely mirrored the Honest Ads Act, a bill aimed to
increase transparency in online political advertising in the United States.
Similar versions of the bill, with bipartisan support, were introduced in both
houses of Congress in October 2017. The proposed law would apply to any
site with at least 50 million unique monthly visitors in the previous 12
months.90 As a result, it would primarily impact Facebook and Twitter,
though they are not named in the bill. The Honest Ads Act would require
companies to keep copies of political ads and make them publicly available
as well as maintain records of media buyers and rates charged for ads for no
less than four years.91 It would apply to anyone who spends $500 or more on
political ads. Like the Irish bill and other attempts to regulate fake news, the
Honest Ads Act was introduced in response to Facebook’s Russia-linked ads
scandal, where millions of Americans saw politically divisive Russian-
86 Online Advertising and Social Media (Transparency) Bill 2017 (Act No. 150/ 2017) (Ir.)
http://www.oireachtas.ie/documents/bills28/bills/2017/15017/b15017d.pdf.
87 New Bill Will Help Make Political Advertising on Social Media More Transparent - Fianna
Fail, EVENING ECHO (June 6, 2017, 7:09 PM), http://www.eveningecho.ie/oneaday/New-bill-will-
help-make-political-advertising-on-social-media-more-transparent-Fianna-Fail-e17403a9-afd8-
4273-9365-266b65be3d85-ds.
88 Frances Mulraney, Sharing “Fake News” in Ireland Could Soon be Illegal, with $10k Fine
Attached, IRISH CENTRAL (Dec. 17, 2017), https://www.irishcentral.com/news/politics/fake-news-
ireland.
89 Kevin Doyle, Five Years in Jail for Spreading 'Fake News' Under FF Proposal,
INDEPENDENT (Jan. 8, 2018, 2:30 AM), https://www.independent.ie/irish-news/politics/five-years-
in-jail-for-spreading-fake-news-under-ff-proposal-36375745.html.
90 Luis Gomez, What is the Honest Ads Act and Can it Stop Fake Political Ads on Social
Media?, SAN DIEGO UNION-TRIBUNE (Oct. 31, 2017, 6:06 PM),
http://www.sandiegouniontribune.com/opinion/the-conversation/sd-what-is-honest-ads-act-can-it-
stop-fake-political-ads-twitter-facebook-20171031-htmlstory.html.
91 Colin Lecher, Senators announce new bill that would regulate online political ads, VERGE
(Oct. 19, 2017, 1:31 PM), https://www.theverge.com/2017/10/19/16502946/facebook-twitter-
russia-honest-ads-act.S T E MMI N G T H E T I D E O F F A K E N E WS 217
purchased ads on Facebook.92 Unlike the Irish proposal, the Honest Ads Act
does not contain criminal penalties.
Aside from the Honest Ads Act, legislative movements to punish and
regulate fake news93 have gained little traction in the United States because
of the significant constitutional hurdles presented by the First Amendment.94
However, one state law targeting fake news appeared to have been quietly
enacted. In March 2017, a California lawmaker introduced legislation
targeting fake news, but abruptly canceled scheduled hearings.95 The
proposed bill, called the California Political Cyberfraud Abatement Act,
would have made it “unlawful for a person to knowingly and willingly make,
publish or circulate on an Internet Web site . . . a false or deceptive statement
designed to influence the vote.”96 The bill was tabled without a public hearing
shortly after the Electronic Frontier Foundation publicly criticized it.97
Although it subsequently received no media attention, the California
Legislative Information site recorded an amended version of the bill as being
passed 40-0 in the California Assembly on September 11, 2017, and
approved by California Governor Jerry Brown on October 12, 2017.98 The
amended bill broadens the definitions of political cyber-fraud and political
Web site to arguably proscribe legal freedom of expression protected by the
First Amendment. Based on the EFF critique, the new law would likely face
significant legal hurdles if challenged in court. As recently as 2012, the U.S.
Supreme Court reiterated First Amendment protection for false speech in
92 David Ingram, Facebook says 10 million U.S. users saw Russia-linked ads, REUTERS (Oct.
2, 2017, 8:06 AM), https://www.reuters.com/article/us-facebook-advertising/facebook-says-10-
million-u-s-users-saw-russia-linked-ads-idUSKCN1C71YM.
93 Jason Silverstein, TV viewers keep asking the FCC to punish CNN for Trump coverage even
though it can’t, N.Y. DAILY NEWS (Sept. 13, 2017), http://www.nydailynews.com/news/politics/tv-
viewers-fcc-punish-cnn-trump-coverage-article-1.3493595.
94 Andrew Blake, California ‘fake news’ bill falters amid free speech concerns, WASH. TIMES
(Mar. 29, 2017), http://www.washingtontimes.com/news/2017/mar/29/california-fake-news-bill-
falters-amid-free-speech.
95 Cyber Fraud Bill Would Make ‘Fake News’ Against the Law, CBS L.A. (Mar. 31, 2017,
10:46 AM), http://losangeles.cbslocal.com/2017/03/31/cyber-fraud-bill-would-make-political-
fake-news-against-the-law.
96 Anthony L. Fisher, Fake news is bad. Attempts to ban it are worse, VOX (July 5, 2017, 10:24
AM), https://www.vox.com/the-big-idea/2017/7/5/15906382/fake-news-free-speech-facebook-
google.
97 Dave Maas, Cal. Bill to Ban Fake News Would be Disastrous for Political Speech,
ELECTRONIC FRONTIER FOUNDATION (Mar. 28, 2017),
https://www.eff.org/deeplinks/2017/03/california-bill-ban-fake-news-would-be-disastrous-
political-speech.
98A.B. 1104, 2017-2018 Leg. Reg. Sess. (Cal. 2017), Legislative Info.,
https://leginfo.legislature.ca.gov/faces/billVersionsCompareClient.xhtml?bill_id=201720180AB1
104.218 J. I N T ’ L M E D I A & E N T E R T A I N ME N T L A W VOL. 8, NO. 2
United States v. Alvarez, a case involving false claims about being awarded
a military medal.99
In contrast, legislative efforts to punish fake news in China were among
the first worldwide, with the country revising its criminal laws in October
2015. But the crackdown on rumor-mongering started even earlier, with the
nation detaining bloggers in 2013 as part of its effort to maintain control over
public opinion.100 More recently, in November 2017, Chinese President Xi
Jinping authorized the military’s launch of a website where members of the
public can report fake news.101 Unsurprisingly, these moves were met with
little public resistance and hardly attracted attention domestically and
internationally. The government revised Article 291 of China’s Criminal Law
to address particular types of fake news, but the language used was noticeably
vague. The new provision targets anyone who “fabricates or deliberately
spreads on media, including on the Internet, false information regarding
dangerous situations, the spread of diseases, disasters and police information,
and who seriously disturb social order.”102 Although further regulation of
fake news garnered criticism from human rights organizations as restricting
free speech, the amendments to China’s Criminal Law did not sound alarm
among Chinese citizens living in an environment largely hostile to free
speech. Similar to other countries discussed, China’s rationale for the
regulation was geared toward ensuring internal stability within its borders.
III. FREEDOM OF EXPRESSION AS A DEMOCRATIC VALUE IN MODERN
SOCIETY
The importance of information in modern society is undisputed; as the
Internet continues to connect the modern world in ways previously only
dreamed of, existing societies have morphed into information states that rely
on the collection and use of information.103 Thriving democracies need
information to survive; democracy requires that its electorate be well-
99 United States v. Alvarez, 567 U.S. 709 (2012) (striking down the Stolen Valor Act, which
criminalized false statements about being awarded military medals).
100 Chris Buckley, Crackdown on Bloggers is Mounted by China, N.Y. TIMES (Sept. 10, 2013),
http://www.nytimes.com/2013/09/11/world/asia/china-cracks-down-on-online-opinion-
makers.html.
101 Chinese Military Sets Up Website to Report Leaks, Fake News, HINDU (Nov. 19, 2017,
11:31 AM), http://www.thehindu.com/news/international/china-military-sets-up-website-to-report-
leaks-fake-news/article20555153.ece.
102 China: New Ban on ‘Spreading Rumors’ About Disasters, HUMAN RIGHTS WATCH (Nov.
2, 2015), https://www.hrw.org/news/2015/11/02/china-new-ban-spreading-rumors-about-disasters.
103 Jack Balkin, The First Amendment is an Information Policy, 41 HOFSTRA L. REV. 1, 4
(2012).S T E MMI N G T H E T I D E O F F A K E N E WS 219
informed,104 and the “right to know” has become a standard that furthers the
goals of governmental accountability and democratic self-governance.105 As
Justice Hugo Black noted, “the widest possible dissemination of information
from diverse and antagonistic sources is essential to the welfare of the public,
[and] that a free press is a condition of a free society.”106 After all, a
democratic government derives its legitimacy from the consent of the
governed. For that consent to be meaningful, citizens must be informed not
only about what their government is doing, but also about newsworthy events
that may affect their daily lives, the behavior of individuals whom they may
elect into political office, and the activity of nations around the world.
However, control over the flow information must exist in a delicate
balance. On one hand, democratic regimes must be careful to ensure that the
fear of sensationalism, terrorism, or similar threats do not lead to overly-
authoritative regulation that frustrates the principles of free expression.107 On
the other hand, these same governments have a vested interest108 against the
dissemination of information that may lead citizens down a disastrous path
or pose a threat to national security.109 The freedom of expression (and with
it the rights encapsulated in the First Amendment of the United States
Constitution)110 is then caught in a battle over infrastructure and contrasting
interests: there is a constant question of whether regulation is necessary and
who, exactly, should be permitted to determine or apply any regulation.111
The dawn of Internet speech has only complicated the matter. Where
previously issues of speech and press existed on newsstands and at street
protests, social media’s emergence as a formidable platform for speech has
changed how the world communicates. It has also caused attorneys and
legislators alike to question how existing law should apply to emerging
media. Tech companies have considered this, too; because the First
Amendment, in practice, covers a host of values that serve as the foundation
104 Thomas Jefferson, Letter to Richard Price, Jan. 8, 1789,
http://www.loc.gov/exhibits/jefferson/60.html.
105 Barry Sullivan, FOIA and the First Amendment: Representative Democracy and the
People’s Elusive ‘Right to Know’, 72 MD. L. REV. 1, 9 (2012).
106 Associated Press v. United States, 361 U.S. 1, 20 (1945).
107 Balkin, supra note 103, at 5.
108 Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557,
593 (1980) (Rehnquist, J., dissenting).
109 In Associated Press v. United States, Justice Black noted that “[i]t would be strange . . . if
the grave concern for freedom of the press which prompted adoption of the First Amendment should
be read as a command that the government was without power to protect that freedom.”Associated
Press, 361 U.S. at 20.
110 The First Amendment guarantees the right of free speech, press, petition, assembly, and
religion. U.S. CONST. AMEND. I.
111 Balkin, supra note 103, at 7.220 J. I N T ’ L M E D I A & E N T E R T A I N ME N T L A W VOL. 8, NO. 2
for the social practices regarding free speech,112 American-based
platforms—such as Google and Facebook—have allowed First Amendment
principles to permeate their content policies and regulatory approaches.113 At
first blush, one might scoff at this, resting on the fact that private companies
are exempt from much of First Amendment doctrine. However, when the
vastness of Internet speech is considered, we see that the power to issue
threats in favor of—or against—censorship in our modern information
society rests not only in the hands of the government, but also—if not more
so—in the hands of social media companies.114
Before addressing those questions, though, the “why” of the matter must
be determined: Why do we (or should we) be wary of such regulation—
especially when we have seen multiple instances where online speech,
including fake news, has wrought havoc on elections,115 individuals,116 and
companies117 alike? The answer is simple: freedom of expression—be it
online, in print, or spoken word—is a fundamental democratic principle that
we cannot risk eroding.
In this section, we will examine the current democratic values through
which we view the freedom of speech and expression, the “marketplace of
ideas” theory and the concept of autonomy and democratic self-governance.
Ultimately, we argue that the current models for fake news regulation are
incompatible with these doctrines.
A. Marketplace Theory
Arguably one of the most well-known theories on free expression, the
“marketplace of ideas” was first introduced into the First Amendment canon
112 Nabiha Syed, Real Talk About Fake News: Towards a Better Theory of Platform
Governance, 127 YALE L.J. FORUM 337, 338 (2017).
113 Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online
Speech, 131 HARV. L. REV. 26 (2018).
114 See Syed, supra note 112, at 356; Balkin, supra note 103, at 5.
115 See Hunt Allcott and Matthew Gentzkow, Social Media and Fake News in the 2016
Election, 31 J. ECON. PERSPECTIVES 211 (2017).
116 Dainel Funke, A satirical fake news site apologized for making a story too real, POYNTER
(Nov. 30, 2017), https://www.poynter.org/news/satirical-fake-news-site-apologized-making-story-
too-real; see What is Cyberbullying, CYBERBULLYING RESEARCH CENTER,
https://cyberbullying.org/what-is-cyberbullying; see also Lyrissa Lidsky and Andrea Pinzon
Garcia, How Not to Criminalize Cyberbullying, 77 MO. L. REV. 693 (2012)
117 Online reviews from social media-based platforms, such as Yelp, have caused businesses
to gain and lose business—and engage in ferocious litigation. See Michael Luca & Georgios Zervas,
Fake It Till You Make It: Reputation, Competition, and Yelp Review Fraud,
http://people.hbs.edu/mluca/FakeItTillYouMakeIt.pdf; Patricia Clark, Yelp’s Newest Weapon
Against Fake Reviews: Lawsuits, BLOOMBERG BUSINESS WEEK (Sept. 9, 2013),
http://www.businessweek.com/articles/2013-09-09/yelps-newest-weapon-against-fake-reviews-
lawsuits.S T E MMI N G T H E T I D E O F F A K E N E WS 221
in 1919.118 Stemming from the work of John Milton and John Stuart Mill,119
the marketplace theory asserts that the answer to “bad” speech is “more
speech”;120 specifically, the marketplace theory posits that through societal
engagement with a number of ideas, the best and most truthful statements rise
to the forefront and prevail over false or misleading speech. Thus, the
marketplace thrives when multiple, competing opinions are expressed freely
for broad audiences.121 This theory, supported by Justice Holmes’ famous
dissent in Abrams v. United States,122 lifts the freedom of expression to that
of a fundamental right based on its ability to lead us to the discovery of
truth.123
However, the marketplace theory is often critiqued as flawed for several
reasons.124 First, in some instances, the oversimplification of information can
lead to a gross misunderstanding (or understatement) of the issue at hand. In
other instances, truth becomes one of many factors or social values that go
into the debate; a powerful argument can persuade the masses over a truthful
one where it best suits the popular argument. Another critique of the
marketplace centers on desirability and agreement. The marketplace can
allow truth to be determined by a consensus; where many voices are
permitted to chime in, consensus over agreeable statements (i.e., those which
support a particular viewpoint) may triumph over facts.
When considering the marketplace theory in the fake news debate, it is
easy to dismiss its importance because of these critiques. In fact, it can be
argued that when it comes to online speech—such as fake news—the
marketplace provides an excellent foundation for the right to free expression
with little instruction on how to adapt it for the changing forms of speech.125
118 In Abrams v. United States, Justice Oliver Wendell Holmes stated in his dissent that,
“[W]hen men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the foundations of their own conduct that the ultimate good desired is better
reached by free trade in ideas--that the best test of truth is the power of the thought to get itself
accepted in the competition of the market . . . .” Abrams v. United States, 250 U.S. 656, 630 (1919).
Since then, the phrase and concept of the marketplace has frequently been used in U.S. Supreme
Court jurisprudence. See Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 295
(1981); Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557,
592 (1980); Red Lion Broadcasting, Co. v. FCC, 395 U.S. 367, 390 (1969).
119 See John Milton, AREOPAGITICA; A SPEECH OF MR. JOHN MILTON FOR THE LIBERTY OF
UNLICENSED PRINTING (1644); John Stuart Mill, ON LIBERTY (1859).
120 See Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (“[T]he
remedy to be applied is more speech, not enforced silence. Only an emergency can justify
repression.”).
121 Lawrence B. Solum, Freedom of Communicative Action: A Theory of the First Amendment
Freedom of Speech, 83 NW. U.L. REV. 54, 68, 69 (1989).
122 Id.
123 Id.
124 Syed, supra note 112, at 340-42.
125 See Syed, supra note 112, at 341.You can also read
